'As a matter of policy, the complaint's aim is likely another push for regulating social media companies,' argues Tyler Grant.

Rep. Devin Nunes filed a $250 million lawsuit against Twitter on Monday in Virginia state court, claiming the social network is complicit in defamation by "knowingly hosting and monetizing" abusive content on its service.

Nunes submits a losing complaint

By Tyler Grant

Rep. Devin Nunes, R-Calif., is fed up. He's making good on his promise to sue Twitter, filing a complaint Monday against the tech giant, two Twitter users (@DevinNunesMom and @DevinCow) and political strategist Liz Mair because of alleged defamatory tweets about him. He's seeking $250 million in compensatory damages and $350,000 in punitive damages, alleging "negligence, defamation per se, insulting words and civil conspiracy."

Nunes will probably not be successful in his lawsuit. Besides, it's a case that's really just a head nod to the president's hope of regulating social media.

As a practicing attorney, I can tell you: From a legal perspective, Nunes' case is a loser.

Nunes wants courts to hold Twitter civilly liable for not perfectly adhering to its mission of promoting an open forum free from misinformation. Under its terms of service, the social media company holds a responsibility of reasonable care to its users, Nunes claims. He says Twitter has failed in this responsibility, adding that this duty of care makes Twitter liable when it facilitates insulting words.

The case also alleges that Twitter is actively muting conservatives through "shadow banning" — a method of allowing users to post but limiting the post's exposure to other users. The cause of action here as a matter of "civil conspiracy" is lightly cited. It'll probably be tossed out immediately.

His claim of "defamation per se" means that the tweets about him rise to the level where they are clearly defamatory and harmful. Generally, winning a defamation suit as a public figure requires a plaintiff to prove actual malice — which is very difficult. The claims suggest that Mair intended to harm Nunes through misdirection and a coordinated smear campaign, but courts have generally held that Twitter is merely a forum for ideas, not facts. This grants Mair some cover.

Twitter is just a curator of the forum. It doesn't have a duty to halt each defamatory tweet, and Nunes' complaint doesn't adequately create a logical nexus between Twitter being "negligent" in allowing defamatory statements about Nunes on its platform and the third-party smear campaign making the statements.

Twitter users @DevinNunesMom (now deactivated) and @DevinCow will likely win by the same logic that a federal judge applied in Stormy Daniels' defamation case — he held that rhetorical hyperbole was protected speech. Both accounts are obvious parody. And even if they're working in some comedic conspiracy against Nunes, their tweets will likely not meet the legal burden required to warrant damages.

As a matter of policy, the complaint's aim is likely another push for regulating social media companies. Among conservatives, the legal theory to this end is a popular one — Twitter serves as a modern town square — a marketplace of ideas that relies on the foundational First Amendment case Hague v. Committee for Industrial Organization, which held that government is obligated to preserve free speech in areas considered public forums.

This debate over regulating social media companies will be ongoing: The Supreme Court is set to weigh in again on social media and First Amendment protections sometime this spring.

Meanwhile, Nunes' complaint is just another frivolous attempt to further a right-wing argument and, in the end, it won't amount to much of anything at all.

Tyler Grant, a lawyer and writer in New York, is a Young Voices contributor. You can follow him on Twitter: @The_Tyler_Grant

What others are saying

Becket Adams,Washington Examiner: "The lawsuit alleges Twitter has gone well beyond merely hosting content. It alleges the social media site actively curates and encourages certain types of posts, including those that make fun of Rep. Devin Nunes, R-Calif. It's like these people have never heard of the Streisand Effect. If these Twitter troll accounts are as terrible and hurtful as the congressman alleges, the congressman just gave them a national audience. Thousands and thousands of people who otherwise would have never known about any of this now know (or will soon know) that someone once called Nunes a 'treasonous cowpoke' thanks to his lawsuit. That’s called a 'self-own.' "

Todd Neikirk, Hill Reporter: "In February of 2017, Nunes co-sponsored a bill called the, 'Discouraging Frivolous Lawsuits Act.' Nunes now feels that the parody Twitter accounts are used both to mock him and suppress conservative viewpoints. ... While Nunes has faced heavy criticism for the lawsuit, he plans to file many more. ... Apparently, frivolous lawsuits bother Devin Nunes, unless he’s the one filing them. Hypocrisy at its worse."

Andrew Napolitano,Fox & Friends: "It's a novel litigation. We haven't seen anything like this before. Usually, when public officials sue because of what somebody said or didn't say about them, they lose. ... The First Amendment does not regulate Twitter. It's a private entity, so I don't know where it's going to go. He may be doing this just to make a statement."

What our readers are saying

Rep. Devin Nunes, R-Calif, has consistently defended President Donald Trump's more egregious actions. He is the poster boy for the untrustworthy, dishonest politician out to make a buck anyway he can. Voters in his district need to wake up and toss Nunes out in the next election.

— Chuck Sable

Nunes' lawsuit is great. I hope he gets a huge settlement from Twitter and its executives get some prison time. Social media liberals need to be taught a lesson.

— Frank Wilson Harding

Hmm. So Nunes wants the government and the court system to step in and tell a private company how it has to run its business? I thought Republicans hated that sort of thing.